Arizona sheriffs watch SB 1070 hearing with intense interest

by Alia Beard Rau - Nov. 2, 2010 12:00 AMThe Arizona Republic

Maricopa County Sheriff Joe Arpaio, Pinal County Sheriff Paul Babeu and Cochise County Sheriff Larry Dever seemed surprised and encouraged by some of the comments three 9th U.S. Circuit Court of Appeals judges made during a hearing Monday over Senate Bill 1070.

They expected the 9th Circuit, which has a more liberal reputation than other appeals courts, to be a roadblock in the effort to overturn U.S. District Judge Susan Bolton's decision to halt four parts of the immigration-enforcement law from going into effect. But several statements by the judges left the impression that they might allow at least one of the enjoined parts of the law to go into effect.

The three sheriffs were staunch supporters of SB 1070 even before it became law. They say it is another tool for law enforcement to fight immigration-related violence.

The hearing was for the lawsuit the U.S. Department of Justice filed against the state. The sheriffs were not invited to speak before the three-judge panel in San Francisco. Instead, they watched the hearing on TV from the Scottsdale offices of Rose Law Group, which is representing Dever in a separate lawsuit involving SB 1070 filed by the American Civil Liberties Union of Arizona and other groups. That suit names all three sheriffs as defendants.

The 9th Circuit ruled that the state and the U.S. Department of Justice could each decide if they would use all their allotted 30 minutes or share some of it to allow other individuals or groups to speak.

Gov. Jan Brewer elected to reserve her entire time for attorney John Bouma. Arpaio and Dever did submit briefs to the court explaining their stance on the issues.

Attorney Jordan Rose looked concerned when one of the judges suggested attorneys didn't need to spend much time on Section 3 of the law, which makes it a state crime to be in the country illegally.

But she, Rose Law Group attorney Brian Berginand the sheriffs grinned and nodded at comments by Justice John Noonan that seemed to indicate he didn't see a problem with Section 2B, which requires officers to question the immigration status of a person stopped, detained or arrested.

After the hearing, Bergin said it was tough to predict what the court would do. A ruling isn't expected for a few weeks.

"They were pretty tough on the state but really came back with significant questions to the Department of Justice," Bergin said, adding that he thinks there is a "reasonable chance" the judges could allow the part of the law requiring immigration checks to go into effect.

Dever voiced frustration that the sheriffs weren't permitted to speak at the hearing but said he was pleased to hear the judges mention sheriffs and enforcement issues.

"It's clear that they read our brief and took it into consideration," he said. "We as sheriffs have a particular perspective." He favors the law for a provision that would require all law-enforcement agencies to check immigration status, rather than a patchwork of policies.

Babeu said the most beneficial part of the law to his deputies was the portion that makes it a state crime to be in the country illegally and he was hopeful the court would allow that portion to go into effect.

"I thought the judges were very thoughtful, but I've never had a lot of faith in the 9th circuit," he said, calling this hearing one of many battles in the war. "And for the sake of public safety and national security, we have to win this."

The judges' ruling, whatever it is, is expected to be appealed to either the full 9th Circuit or the U.S. Supreme Court.

Arpaio called the Justice Department lawsuit a political move. He said the federal government doesn't object when local law enforcement works with federal officials on bank robberies or gun violations.

"Everybody wants the Hispanic vote, plus employers like to hire cheap labor," he said. "This all has to do with politics and that's a real shame."

Three months into the enforcement SB 1070, there have been no reported arrests using the new statutes that did go into effect.

Arpaio said law enforcement was using other state laws to target human smuggling and the hiring of illegal immigrants, but he said he still supported SB 1070.

"If you have laws on the books, they should be enforced," he said, adding that he will begin enforcing the parts of the law that are in effect that forbid hiring or being hired as a day laborer if it impedes traffic "very soon."